The corridors of the Federal Court are bristling with schadenfreude and recriminations following Justice Jackboots wholesale public evisceration of his slowcoach colleagues.

It’s one thing for organs of the media, like Justinian, to draw attention to “egregious” delays in the delivery of judgments. But, it is out-of-bounds for a judge to publicly rat on his colleagues.

The feedback we are getting at Justinian HQ is that Jackboots is too big for his boots. It is not the function of a puisne judge to publicly heckle his judicial colleagues. What on earth would the Law of Rulers Institute say about that?

The usual procedure is for a concerned judge to take it upstairs and suggest some remedies over a cup of tea.

Boots was not actually saying anything new – only more loudly and more pointedly.

In April, he told The Australian that judges in all but exceptional cases should deliver judgments within one month. The Federal Court’s general timeframe is three months.

In Microsoft Corporation v CPL Notting Hill Pty Ltd, Jackman set out the relevant principles governing judicial delay.

A delay of 12 months is generally regarded as “substantial [and] excessive” (Beaman v Bond), while almost 17 months was described by Carr, Emmett and Gyles JJ in Expectation Pty Ltd v PRD Realty Pty Ltd as “grossly inordinate”.

Importantly, an appellate court “should be more disposed to find error where there has been operative delay” – leaving it open to inference that “the judicial function has miscarried” (Monie v Commonwealth).

See: Slumbering Snails

Justice John Nicholas sat alongside Jackboots on the Microsoft appeal and also made some remarks about delay:

“The delay between the trial and the publication of [the primary judgment] was substantial, extending over a period of approximately three years. A delay of that magnitude allows an appellate court more readily to infer that evidence or submissions not specifically addressed in the primary judge’s reasons were overlooked, or that the advantages that a trial judge ordinarily possesses were lost. Delay in the delivery of judgment must, if it is to justify the setting aside of the judgment on appeal, involve ‘operative’ delay in the sense that the delay must have affected the quality of the decision-making process assessed by reference to the issues, the evidence and the judge’s reasons.” 

Last week, Nicholas J was one of the judges that Boots scathingly criticised for taking two years and nine months to deliver his reasons in Toolgen Inc v Fisher.

How’s that for brotherly love?

Oddly enough, the appeal decision in Microsoft arrived over six months after the hearing – well outside Jackboots’ timeframe.

Debbie Mortimer has ticked off Boots for previous infractions – for allowing his mentor, Dicey Heydon, to linger in the court’s highways and byways in close proximity to where young women are working.

He also got a flea in his ear over public comments about Kathleen Farrell sloping off the bench, leaving an unfinished judgment in her bottom drawer. The CJ sent an email to all the judges, asking for restraint and collegiality.

Two more different characters it’s difficult to imagine. Debbie is nerdy and progressive, with a huge work ethic, yet some find her lacking a human touch – like Chuckles Allsop.

Jackboots is brazen, bumptious, and mentored by Dicey.

You’d have to go back to M.E.J. Black, who used early computer skills to track judgment times. At bi-annual conferences, those over six months were hung out to dry, and the 12-monthers got a real shellacking. Chuckles also had a system of prompting the delivery of languishing judgments.

It was one way to keep the wheels greased.

Now we have serious public strife, including potential problems arranging benches to hear appeals from Jackboots’s decisions.

While he attacked his serving colleagues, plus retired judge Kathleen Farrell and John Nicholas, this is by no means a representative tally of the judicial snail brigade. For several years, Justinian has been reporting laggard judges at the federal courts, the tribunals and state supreme courts.

A search of our archive reveals 13 pages of links to stories with detailed accounts of slow to excessively slow judges (up to four years).

While one of Debbie’s minions removed Boots’ speech from the Federal Court site, it’s available online from the Law of Rulers Institute, although the sound on its video version is hopeless.

Apart from fouling his own nest, Boots also used his fun night with the Law of Rulers to have a go at the High Court’s decisions on indefinite detention in migration cases and on the implied power of political communication, which he sees as an “enormous issue”.

“I think that is the biggest issue with the rule of law at the moment, that the proper functioning of parliament has been hindered by a High Court that has a very expansive view of its power.”

We’ll see how Boots goes as Their Highnesses ponder the appeal in Game Meats Company v Farm Transparency – where he pushed the notion that copyright in the footage of animal cruelty at a goat butchery belongs to the slaughterhouse as a constructive trust, rather than the animal rights activists who hooked up cameras to record what went on.

See Goat Stew

Jackboots, adopted an imperial tone in demanding to know why Justice Snaden, at first instance, “did not find in favour of GMC”?

Are they selling tickets to the next meeting of Federal Court judges?